Category: First Amendment

In a very interesting case, Saffold v. Plain Dealer Publishing Co., a state court judge (Shirley Strickland Saffold) is suing the Cleveland Plan Dealer for stating that comments posted on the newspaper’s website under the screen name “lawmiss” originated from a computer used by the judge and/or her daughter. Some of these comments related to cases before Judge Saffold.

The Cleveland Plain Dealer is putting Saffold on trial. A public records request revealed that some of the articles involved were accessed on Saffold’s court-issued computer at the exact times and dates of three comments posted by Lawmiss.

Judge Saffold denies that she made any of the over 80 comments posted by Lawmiss on the cleveland.com website.

In her complaint Judge Saffold raises the following claims: fraud, defamation, tortious interference, breach of contract, promissory estoppel, and invasion of privacy.

Here’s my assessment of some of the claims raised (and not raised) in the complaint.

Invasion of Privacy. Invasion of privacy actually consists of the four Warren and Brandeis privacy torts, and the complaint appears to discuss two of them — public disclosure of private facts and false light. I don’t know enough about the facts to opine on the false light claim, but the plaintiffs will have a tough time establishing the public disclosure tort since the story is likely to be found newsworthy — of “legitimate concern to the public.” Whenever a story is newsworthy, plaintiffs cannot sustain an action for public disclosure of private facts.

Breach of Contract. Judge Saffold claims that the newspaper’s disclosure of the identity of “lawmiss” violated its website’s privacy policy which states that “personally identifiable information is protected.” The difficulty with this claim is that thus far, courts have held that privacy polices don’t constitute contracts — they are mere statements of policy. See, e.g., Dyer v. Northwest Airlines Corp., 334 F.Supp.2d 1196 (D.N.D. 2004). The issue, though, hasn’t been widely litigated, so the law here isn’t well-settled. For an interesting discussion of the issue, see Allyson W. Haynes, Online Privacy Policies: Contracting Away Control Over Personal Information?, 111 Penn. St. L. Rev. 587 (2007).

In this case, there’s more than just a privacy policy — there’s also a user agreement as part of the registration process to create an account on the website. Courts may see user agreements as more akin to contracts than privacy policies, and the user agreement in this case incorporated the privacy policy.